Federal Court: Do practitioners have a 'right' to object to unfair questions at Tribunal hearings? Must joint liabilities be owed between applicant and sponsor or must they be owed by them, jointly, to others? If applicant and sponsor owe financial obligations to each other, can that tell against the existence of a relationship? Can the gifting of a car tell against the pooling of financial resources? Can the Tribunal's conclusions about 1 of the 4 relationship aspects impact other aspects?
Summary and discussion
The Minister refused to grant the Appellant a partner visa and the Appellant applied to the Tribunal for merits review of that decision.
The Tribunal affirmed the Minister's decision and the Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision. The FCCA dismissed that application and the Appellant appealed the FCCA's decision to the Federal Court (FCA).
The questions to the FCA were as follows:
Question 1: are practitioners expected to object to a question made by the Tribunal if the they believe the question is unfair?
Question 2: is the reference to "joint liabilities" under r 1.15A(3)(a)(ii) of the Migration Regulations 1994 a reference to liabilities owed between visa applicant and sponsor or liabilities owed by them, jointly, to others?
Question 3: if applicant and sponsor owe financial obligations to each other, can that tell against the existence of a genuine relationship?
Question 4: can the gifting of a car tell against a "pooling of financial resources" pursuant to r 1.15A(3)(a)(iii)?
Question 5: can the Tribunal's conclusions about 1 of the 4 relationship aspects impact other aspects?
Question 6: was the Tribunal entitled to take into account the age difference between the Appellant and the sponsor?
Question 7: could savings of $4,526 demonstrate the couple's goal to purchase a house together, in the circumstances of this case?
Question 8: was the Tribunal expected to consider any interests arising under the Family Law or in equity if those interests were not brought to its attention?
The FCA answered as follows...
Answer 1: yes.
The remainder of this article is only available to Case Law and Platinum subscribers.
Read our Terms & Conditions and upgrade below:
Where GST applies, the above amounts are inclusive of GST.
Basic Content includes basic news, some media articles and selected announcements.
Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.
Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.
Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.
If you already have a Case Law or Platinum subscription, click on 'Login' below.